## Facts

- Esplanade Properties, LLC owned first-class tidelands on Elliott Bay below Magnolia Bluff, submerged for roughly half of each day.
- In 1991, Esplanade purchased the property for $40,000 and proposed building nine waterfront homes on platforms supported by pilings.
- In June 1992, Esplanade applied for building and related land-use permits; none were approved.
- Seattle’s Department of Construction and Land Use identified major code issues: oversized piers/docks, causeway design, and insufficient dry-land parking.
- The City interpreted its land-use code to prohibit required single-family parking built over water in a single-family zone; that interpretation was upheld through Washington appellate review.
- Esplanade did not materially revise the proposal to address the City’s concerns, and the City ultimately canceled the application.
- Esplanade sued, alleging the permit denials eliminated all economically viable use (inverse condemnation under federal and state law) and violated federal and state substantive due process.

## Issues

1. Whether denial/cancellation of Esplanade’s development applications for over-water residences on tidelands effected a compensable taking under the Fifth Amendment and Washington law.
2. Whether Esplanade could pursue an independent federal substantive due process claim based on the same land-use denial alleged to constitute a taking.
3. Whether Washington’s constitution provides broader substantive due process protection than federal law for this type of land-use dispute.

## Decision

- The Ninth Circuit affirmed summary judgment for the City on the takings claim.
- The court held no compensable taking occurred because Washington’s public trust doctrine, as a background limitation on title, independently barred the proposed development.
- The court affirmed summary judgment against the federal substantive due process claim because the claim was subsumed by the Takings Clause.
- The court affirmed dismissal of the state substantive due process claim because Washington substantive due process protections were not broader than federal protections in this context.

## Legal Principles

- Under *Lucas* total-taking analysis, no compensation is owed when the prohibited use was never part of the owner’s property rights due to “background principles” of state property law.
- Washington’s public trust doctrine is a background principle limiting private use of tidelands and navigable waters to protect public rights such as navigation, commerce, and fisheries.
- A land-use decision does not cause a compensable taking when state property-law limitations (rather than the local permitting decision) independently preclude the proposed use.
- In the Ninth Circuit, when a land-use claim is covered by the Takings Clause, it cannot be restated as a separate federal substantive due process claim.
- Washington substantive due process in land-use disputes is not broader than federal substantive due process for claims seeking damages or relief based on alleged deprivation of property use.

## Conclusion

The Ninth Circuit held that Seattle’s denial of permits for intensive private residential development on tidelands did not effect a compensable taking because Washington’s public trust doctrine independently barred the proposed use, and it rejected both federal and state substantive due process theories as unavailable or coextensive with federal limits in this setting.


Esplanade Props., LLC v. City of Seattle, 307 F.3d 978 (9th Cir. 2002)